February 27, 2007

Michael Stevens reports on his Kentucky Injury Law Journal that the Kentucky Supreme Court has granted discretionary review in the case of Commonwealth Transportation Cabinet v. Sexton. Sexton created a new duty for landowners with respect to their trees in heavily populated areas. Michael describes the new duty as follows:

The Court of Appeals in a published decision written by Judge Henry (with Judge Combs concurring) held “that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises.”

Michael’s post contains links to the SCOKY order, the Court of Appeals opinion, and his earlier digest of the case. Click the link for Michael’s post.

As noted by the dissent, there currently is no duty for a landowner to discover trees, which may create a “reasonable risk of harm.” A landowner is only responsible for those trees which he knows or should know create an unreasonable risk of harm. His knowledge is the spark which ignites forseeability and establishes a duty. Two judges have now removed the requirement of knowledge. This new duty greatly expands the scope of a landowner’s responsibility. A landowner, or homeowner in urban areas, now has a duty to discover dead or decaying trees that create a risk of harm. I disagree that this is an appropriate course for a select panel of the Court of Appeals to take. If it is to be a new duty it will, and should come, from the Supreme Court.